Telling the Inside Story of Modern Libel Jurisprudence: Review of The Progeny

Vol. 30No. 2

By
PAUL M. SMITH

Paul M. Smith is a partner at Jenner & Block LLP.

In their recently released new book, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan, Lee Levine and Stephen Wermiel reprise an approach to discussing the Supreme Court that they first tried out in a well-received law review article1 about the Dun & Bradstreet v. Greenmoss Builders2 case. That approach involves an extremely thorough description of the Supreme Court’s consideration of a case, starting with the decision to grant review and proceeding from the oral argument transcript to the initial vote on the case at the Court’s post-argument conference, and then combing through the stages of drafting the opinions as well as the written communications among the justices during that drafting process.

This kind of inside look at how the Court functioned when it was rendering historic decisions has become possible in recent years as more of the justices’ papers have been publicly released. And Levine and Wermiel make full use of this trove of materials.

Their story involves the litany of cases familiar to media lawyers that begins with New York Times v. Sullivan3 and proceeds for a quarter century as the Supreme Court constitutionalized and thus revolutionized the law of defamation. We hear about the arguments made by a series of important and often familiar lawyers, from Herbert Wechsler to Richard Nixon, William Rogers, and Edward Bennett Williams. But the protagonist, as the title suggests, is Justice William Brennan, the author of Sullivan and other cases early in the process, who gradually saw his ability to win five votes for expansion of the Sullivan principle dwindle away but who also saw Sullivan itself withstand challenges to become a bedrock of American constitutional law.